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Frequently Asked Questions Employee Relations

This answer depends largely on whether you proceed under Part 432 or
Part 752. Under Part 432, you have the option of demotion or removal
and you do not have to defend your reasoning for choosing either action.
As was noted in Figure C, mitigation to a lesser action by a third
party is not possible. So, if you meet the requirements of proving that
the employee was unacceptable, even after being
given an opportunity to improve, no third party can challenge your
reasons for removing instead of demoting the employee. Therefore, your
decision is based on your analysis of whether the employee can function
acceptably in a lower graded position or not. Some agencies may have
policies that require supervisors to explore demotion options before
going to removal, but that policy would be an internal policy, not
one that governs all Federal supervisors.

However, reduction in the agency-selected penalty, known as
mitigation, is a possibility in any action taken under Part 752.
Therefore, you will need to explain in any decision notice, and possibly
in a proposal notice as well, what factors led you to believe that your
chosen action (suspension, demotion, or removal) was the right one.
Most supervisors who have taken any kind of adverse action against an
employee
have been told about the Douglas factors. This is a reference to a
decision by the Merit Systems Protection Board that listed 12 factors
that might be taken into consideration when deciding on the appropriate
penalty in any adverse action. Your human resources office will be able
to provide you with a copy of these factors. At this point, it is
sufficient to understand that the factors force a deciding official to
examine any issues that might support a more severe penalty as well as
those circumstances that would convince the deciding official to lower
the penalty.

Technically, the within-grade increase determination is based on the
most recent rating of record as long as it was issued within the last
year. However, the regulations provide that a
supervisor, in making an "acceptable level of competence"
determination, may issue a new rating if the most recent rating does not
reflect the employee's current performance.

Consider the case where an employee's within-grade increase is due
in 3 weeks, the last rating was Fully Successful, and the employee was
given an opportunity to improve that began last month. You would need
to
decide whether the employee's current performance has come back up to
Fully Successful, and if so, you would approve the within-grade
increase. However, it is more likely that the current performance is
still
below the acceptable level, in which case a new rating needs to be
issued to support the denial of the within-grade increase.

Yes. More than that, as the employee's supervisor and "rating
official," it should be your goal to keep an employee informed about
your assessment of his or her performance, particularly when that
assessment is negative. Within your agency, there may be a policy or
practice you must follow when you notify an employee that his or her
performance has become unacceptable. You should contact your human
resources office for further information.

As a general rule, you should give your employee a copy of the notes
from a discussion or meeting that pertain to your expectations and
responsibilities as well as the employee's responsibilities. It is
expected that you may take "supervisory" notes to serve as "memory
joggers" regarding the employee's performance. For example, these notes
can include dates or the number of times an employee was given an
instruction. This type of "supervisory" information does not have to be
included in the notes given to the employee. Contact your agency's
legal counsel or human resources staff for information on Privacy Act
requirements concerning supervisory notes.

No. The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.

Although we focus a great deal in this booklet on supervisory
responsibilities for informing and assisting an employee, the employee
has the primary responsibility for improving his or her performance. An
employee who gives the boss "the silent treatment" and refuses to
accept any assistance runs the risk of failing to improve performance
during the opportunity period and suffering the consequences. You may
want to consider contacting your human resources office and asking if
the agency uses trained mediators or facilitators to break through some
communication problems. Regardless, an employee needs to be told what
the expectations are for his or her performance and the consequences if
these expectations are not met. Be sure to document your efforts to
communicate these expectations and consequences.

Generally, annual leave and leave without pay are discretionary based
on the needs of the office and could be denied based on the importance
of focusing on improving performance in the time allotted. However,
sick leave, supported by acceptable documentation, must be approved as
long as the employee follows agency procedures for requesting the leave.
As noted earlier, you should be aware of certain programs under the
Family and Medical Leave Act of 1993 and the Family Friendly Leave Act
of 1994 that may require you to approve leave.

There is no legal obligation to provide counseling to an employee
before beginning an opportunity period because of the employee's
unacceptable performance. However, it is always good management
practice to talk to an employee when his or her performance begins to
slip below the acceptable level. Hopefully, early counseling efforts
would
be successful and there would be no need for a formal opportunity
period.

As stated earlier, if you take a performance-based action under Part
432, you must provide an employee with a formal opportunity to improve.
On the other hand, Part 752 does not require a supervisor to provide an
employee with such an opportunity. One reason for not providing an
opportunity period may be that your employee has several years of
experience in the job and additional training would prove useless.
Another
reason may be that your employee has already received extensive
informal training and additional training or assistance would seem
unreasonable.

The question of who is "disabled" under the law is one that is still
confusing to experts. In most cases, you will want to turn over any
documentation you receive from the employee to the human resources
office so that they can obtain a physician's review of the employee's
medical documentation. Once you get a decision from the medical
experts that the employee's condition significantly impacts his or her
ability to perform, you will need to carefully consider what the
employee is requesting in the way of accommodation and assess whether or
not you can provide the accommodation.

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